Illegal Stay by Foreign Nationals | Detected for Illegal Stay or Facing a Compulsory Deportation Crisis? A Complete Summary of Remedy Measures

Illegal stay by foreign nationals is a general term referring to foreign nationals who do not hold a status of stay within the Republic of Korea or who continue to stay beyond the period of stay.

In the case of an illegal resident, under the 「Immigration Act」 the person may be subject to a compulsory deportation order and criminal punishment such as imprisonment for up to 3 years or a fine of up to 30 million won.

However, recent legal provisions and cases of remedy resolutions show that where humanitarian circumstances, unavoidable conditions, or contribution to the public interest are explained in detail, reduction of the penalty, suspension of compulsory deportation, or remedy through a change to a lawful domestic status of stay may be granted.

Under the regulations of the Ministry of Justice, the procedure for handling illegal residents proceeds through the following stages: detection and crackdown → securing custody and investigation → examination of the immigration offense → administrative disposition and departure.

1. Crackdown and Securing Custody

In most cases, foreign nationals staying illegally are detected through joint crackdowns by the government, including the crackdown teams of the Ministry of Justice's immigration and foreign nationals offices, the police, and the Ministry of Employment and Labor.

At this stage, if a risk of flight is recognized or the person is judged to be subject to compulsory deportation (forced removal), there is a high possibility of temporary protective detention at a foreign nationals' detention center under the immigration and foreign nationals office.

2. Examination of the Immigration Offense (Investigation Stage)

An immigration control official investigates the period of illegal stay, whether illegal employment occurred, whether the person was involved in disguised entry or false invitation, and any record of past violations.

3. Decision on the Penalty and Administrative Disposition

A penalty is imposed according to the period of illegal stay, and if the penalty is not paid, the case is enforced through a criminal accusation or the compulsory deportation procedure.

• Compulsory Deportation Order : This is the most serious administrative disposition, forcibly repatriating a foreign national who has violated the Immigration Act.
• Departure Order : Where the person is willing to leave voluntarily and can depart at their own expense, a departure deadline is set and the person is ordered to leave on their own.
• Entry Ban (Regulation) Disposition : By the authority of the Minister of Justice, entry into the Republic of Korea is banned for at least 1 to 5 years or more (up to permanently, depending on the severity of the violation and whether criminal punishment was imposed).

4. Objection and Remedy Procedures

If the suspect has any objection, they may submit a written objection to the Minister of Justice through the head of the local immigration and foreign nationals office within 7 days from the date of receiving the compulsory deportation order.

If the objection is not accepted, the person may pursue remedy procedures such as an administrative appeal or administrative litigation, including a claim to revoke the compulsory deportation and the protective detention order.

However, where disguised entry, submission of false documents, smuggling, or acts of arrangement or concealment are combined, separately from the administrative disposition the person is subject to compulsory deportation after undergoing a criminal trial that may impose imprisonment for up to 3 years or a fine of up to 30 million won.

Even for a foreign national staying illegally, the penalty may be reduced within the range of half the standard amount, and if special circumstances are explained, stay may be permitted.

The following are recent 2026 resolution cases of the Seoul Immigration and Foreign Nationals Office, showing that the possibility of remedy is open for foreign nationals staying illegally.

① Remedy through change of status to domestic marriage migration (F-6) for a long-term illegal resident

In a case where a person married a Korean national during a long period of illegal stay, by explaining the humanitarian circumstance that the spouse was 6 months pregnant and required regular medical treatment and care, a change to marriage migration (F-6) status of stay within the country was permitted after a penalty disposition, without departure and re-entry.

② 90% reduction of the penalty and permission to stay for an international student engaged in public service volunteer activities

This is a case in which an international student born in Korea engaged in activities outside their status of stay by receiving an honorarium while volunteering at a public-interest study room for children from vulnerable groups. In this case, the public-interest character of the voluntary reporting of the illegal stay and the long period of volunteer activities was recognized, so the penalty was reduced by 90% and domestic stay was permitted.

③ Granting a lawful stay opportunity once more instead of compulsory deportation to an overseas Chinese resident who had lived in Korea for decades

A Taiwanese overseas Chinese resident who was born in Korea and had lived there for decades came to stay illegally due to economic circumstances caused by COVID-19, but in consideration of a settled life essentially equivalent to that of a national of the Republic of Korea, a will for self-reliance, and economic circumstances, a lawful stay opportunity was granted once more instead of compulsory deportation.

However, because the above cases are individual resolution outcomes in which different specific circumstances (humanitarian situations, contribution to the public interest, long-term settlement, etc.) were recognized, the same treatment does not necessarily apply to all cases of illegal stay by foreign nationals, nor is a similar degree of leniency or reduction rate guaranteed.